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High Court decision unlikely to lead to immediate release of refugees

Naomi WoodleyUpdated
Sat 6 Oct 2012, 9:10 AM AEST

The Federal Government says it's still assessing the implications of a High Court ruling that negative security assessments from ASIO can't be used to deny a refugee a protection visa. The case was brought by a 36-year-old Sri Lankan man, but the Government says he'll stay in detention while his case is reassessed. The court chose not to address the question of whether indefinite detention can be justified.

Transcript

ELIZABETH JACKSON: Refugee advocates have welcomed the High Court's ruling that adverse security assessments by ASIO (Australian Security Intelligence Organisation) aren't a valid reason to deny refugees protection visas, but it seems unlikely the decision will lead to the immediate release of any refugees.

The Government says it's still considering the implications of the Court's decision, in a case brought by a Sri Lankan man found to be a refugee but held in detention for three years.

From Canberra, Naomi Woodley reports.

NAOMI WOODLEY: The High Court said that it was invalid to use an adverse security assessment by ASIO to prevent a 36-year-old Tamil man from Sri Lanka from being granted a protection visa.

The majority of the Court ruled that the regulation which allows ASIO rulings to be used in that way is inconsistent with the Migration Act.

But the Attorney-General, Nicola Roxon, is emphasising that the Court did rule in favour of the process used by ASIO, and did not address questions of whether indefinite detention is lawful.

NICOLA ROXON: Previously, the High Court did back the Government's ability to take such action.

Obviously, there are new people on the Court. It can obviously reconsider its position.

That this decision explicitly did not deal with that issue, but we do know that there are other cases that were put on hold while this one was being dealt with which will no doubt now be heard by the High Court at some point in the future. And the Government will put its arguments in that case.

NAOMI WOODLEY: Pamela Curr, from the Asylum Seeker Resource Centre, says the ruling means the plaintiff and around 50 other refugees in a similar situation should be released from detention while their cases are re-assessed.

PAMELA CURR: We are locking up refugees in arbitrary indefinite detention.

We've got to face it, and we've got to do something about it.

NAOMI WOODLEY: But the Attorney-General, Nicola Roxon, says the High Court explicitly ruled that the Sri Lankan man's detention is valid.

NICOLA ROXON: The judges say the decision now needs to be re-made with respect to this one individual. And they explicitly say, by a majority, that he is to remain in detention while that's done.

NAOMI WOODLEY: The Greens' Senator Sarah Hanson-Young is planning to introduce a bill to Parliament next week to allow refugees to see their security assessments and to appeal against adverse decisions.

SARAH HANSON-YOUNG: We need to make sure we have a proper process for reviewing ASIO assessments so that we know whether people are indeed a risk to the community or not.

NAOMI WOODLEY: But the Attorney-General says the Government is committed to introducing a review process for security checks.

NICOLA ROXON: We're just considering the implications of this case, to see exactly what that review process should look like, and we'll be able to make some announcements shortly on that.

NAOMI WOODLEY: The Federal Opposition's immigration spokesman, Scott Morrison, says they'll work with the Government to restore the powers needed to protect national security, and the Opposition will receive a briefing from the Government next week.